Why Pass This Law?

States have been collecting DNA from convicted felons for over two decades, and it’s helped solve thousands of crimes. But, we can do more. By passing arrestee DNA legislation, law enforcement officials can catch criminals sooner, prevent crimes, save more lives and use DNA to its full potential. Collected at the same time as fingerprints, DNA testing only requires a simple cheek swab upon arrest. That’s why Congress and over half the states have already passed laws for DNA Arrestee Testing.

Arrestee testing will help your state to:

Catch repeat offenders sooner

Prevent violent crimes

Exonerate the innocent

Protect civil liberties

Reduce criminal justice costs

Reduce bias

The Facts

Since 1974, more than 90 percent of all state prisoners have been repeat offenders

70% of America’s crime is committed by 6% of its criminalsBright Lines, Dark Deeds: Counting Convictions Under the Armed Career Criminal Act by James E Hooper; Michigan Law Review, Vol. 89, 1991

With DNA arrestee testing on the books since 2003, Virginia has received over 5,000 hits on their database, with almost 700 of these matches directly attributal to arresteeswww.dfs.virginia.gov/statistics/index.cfm

California's average number of monthly hits between offender DNA profiles and DNA profiles from unsolved crime scene samples has increased from 183 per month in 2008 (the year prior to the full implementation of arrestee DNA) to over 400 hits per month. This is an increase of over 125 percent.[FAQ: Effects of the All Adult Arrestee Provision] [as of Sept.6, 2011].

With the advent of DNA taken upon felony arrest, California has cleared or aided in the investigation of over 50 percent of the unsolved cases added to its database between January 2009 and July 1, 2011—with over 9,000 DNA matches between offender DNA database identification profiles and profiles from crime scene evidence.[FAQ: Effects of the All Adult Arrestee Provision] [as of Sept. 6, 2011].

To date, post-conviction DNA testing has led to the exoneration of more than 300 wrongfully convicted individuals in the United States, and many of these individuals were not fully exonerated until after a DNA match was made on the database to another offenderwww.innocenceproject.org

28 States have enacted legislation to require DNA from certain felony arrestees, and even more states are considering such lawswww.dnaresource.com

The Chicago Study

In 2005, the City of Chicago demonstrated the prevalence of repeat crime and the importance of arrestee testing. By taking a closer look at the criminal history of eight convicted felons, the Chicago Study uncovered startling results - 60 violent crimes could have been prevented if only DNA had been collected for a prior felony arrest. In each case, the offender had committed previously undetected violent crimes that investigators could have identified immediately through a DNA match.

Unfortunately, DNA was not required at arrest. The eight offenders in Chicago accumulated a total of 21 felony arrests before law enforcement officials were finally able to convict them of violent crimes.

With DNA arrestee testing, the following crimes could have been prevented:

The Fourth Amendment Discussion

Why Taking DNA upon Felony Arrest Does Not Violate the Fourth Amendment of the U.S. Constitution
Many states in the U.S. have begun to protect victims and the innocent, while more are quickly identifying dangerous perpetrators by requiring that DNA be taken when individuals are arrested for violent felonies. While often challenged on Constitutional grounds, courts throughout the country have overwhelmingly upheld these statutes. The court decisions and the rationale supporting those decisions have been clear that the processes, procedures and benefits of taking DNA from those arrested for violent felonies is as constitutionally sound as taking fingerprints from those same people.

Supreme Court Upholds “Katie’s Law”
On June 3, 2013, the US Supreme Court upheld “Katie’s Law” denying a challenge that laws to require DNA upon arrest were a violation of fourth Amendment rights. In calling the case, “perhaps the most important criminal procedure case this Court has heard in decades,” the justices stated that “DNA is like fingerprinting _and photographing, a legitimate police booking procedure that _is reasonable under the fourth Amendment”. Maryland v. King _No 12-207.

The Federal Appeals Court in the Third Circuit as recently as July 25th, 2011, found the Federal Arrestee statute to be constitutional. Significantly, the Court in United States v. Mitchell (Third Cir. July 25, 2011, No. 09-4718) ___ F.3d ___, 2011 WL 3086952, analyzed the issue using a "totality of the circumstances" test – the same test used by eight of the 11 Federal Circuits.

The Fourth Amendment
The Fourth Amendment to the U.S. Constitution protects individuals from those searches and seizures that are "unreasonable." For years, the Courts, including the U.S. Supreme Court, have found that, when a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest. The rationale behind the decision is the fact that the identification of suspects is "relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes." (Jones v. Murray, 962 F.2d 302, 306 (Fourth Cir. 1992); Johnson v. Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000).) This becomes particularly clear when we consider the universal nature of "booking" procedures followed for every suspect arrested for a felony, whether or not the proof of a particular suspect's crime will involve fingerprint evidence.

Treating the taking of DNA samples at arrest just like fingerprinting at arrest has been widely accepted. In addition to the Fourth Circuit in the Jones case:

The Second Circuit held "[t]he collection and maintenance of DNA information, while effected through relatively more intrusive procedures such as blood draws or buccal check swabs, in our view plays the same role as fingerprinting." Nicholas v. Goord, 430 F.3d 652, 671 (Second Cir. 2005), cert. denied, ___ U.S. ___, 127 S.Ct. 384 (2006).

The Third Circuit held "[t]he governmental justification for [DNA] identification relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods." United States v. Sczubelek, 402 F.3d 175, 185-86 (Third Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2930 (2006).

The Ninth Circuit held "[t]hat the gathering of DNA information requires the drawing of blood rather than inking and rolling a person's fingertips does not elevate the intrusion upon the plaintiffs' Fourth Amendment interests to a level beyond minimal." Rise v. State, 59 F.3d 1556, 1560 (Ninth Cir. 1995).

The State of Maryland held "The purpose [of the DNA profile] is akin to that of a fingerprint. (State v. Raines, 857 A.2d 19, 33 (Md. 2004)

New Jersey held, "We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person . . . . [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one's photograph that a person must already undergo as part of the normal arrest process." State v. O'Hagen, 914 A.2d 267, 280 (N.J. 2007)

Oregon held "Because using a swab to take a DNA sample from the mucous membrane of an arrestee's cheek is akin to the fingerprinting of a person in custody, we conclude that the seizure of the defendant's DNA did not constitute an unreasonable seizure under the constitution." State v. Brown, 157 P.3d 301, 303 (Or. Ct. App. 2007)

The Virginia State Supreme Court held "the taking of Anderson's DNA sample upon arrest in Stafford County pursuant to Code § 19.2-310.2:1 is analogous to the taking of a suspect's fingerprints upon arrest and was not an unlawful search under the Fourth Amendment.

Reducing Costs

By collecting DNA from arrestees, law enforcement can identify criminals earlier and create more efficient Investigation practices. Solving crimes sooner reduces costs associated with misdirected investigations. With a DNA match, law enforcement can quickly narrow in on the right suspect, saving untold manhours and manpower used in traditional investigations. This cost savings can then be redirected to other crimes where DNA is not available and traditional investigation techniques are the only means of solving the crime. With a DNA match, persons wrongfully accused of committing a crime can be freed sooner. Consider the case of Robert Gonzalez who provided a false confession and was in danger of a wrongful conviction until a match was made on the DNA database — a match to a DNA sample collected under Katie's Law from a felony arrestee. (Read more about this case here http://www.innocenceproject.org/Content/1445.php). With a DNA match, more crimes can be prevented, such as those in the Chicago Study, or the cases from California, Maryland, Texas, and Washington State. How do we put a price on the cost of saving a life or preventing a rape? What is the cost of knowing we could have done something to prevent these crimes, and chose not to?

Chester Turner

Chester Turner was arrested 21 times over the period of 15 years without ever being convicted of a crime that would allow his DNA profile to be uploaded into the DNA database. When he was finally convicted of rape and his DNA profile was uploaded into CODIS, it matched to the crime scene DNA found on 12 raped and murdered women. The first of these women was murdered less than two months after his first felony arrest. Her name was Diane Johnson. He went on to murder Annette Ernest, Anita Fishman, Regina Washington, Debra Williams, Mary Edwards, Andrea Triplett, Desarae Jones, Natalie Price, Mildred Beasley, Paula Vance and Brenda Bries. Had Turner's DNA been taken upon his first felony arrest, crime scene evidence from Diane Johnson could have matched Turner's CODIS profile and 11 women might have been saved. To compound this tragedy, a man name David Jones was wrongfully convicted and spent 11 years in prison. One cheek swab could have saved 11 lives and kept an innocent man from spending 11 years in prison. And recently Turner was linked to three more murders, bringing the lives that could have been spared to 14.

Mopac Rapist

Christopher Ted Dye raped three Austin women in their homes before the police first arrested him in 1993 for burglarizing a house. Unaware they had apprehended a serial rapist, authorities released the 34-year-old former auto mechanic on bail.

Over the next six months, Dye raped four more women before being arrested a second time for burglarizing an apartment. He served two months in jail. For two more years, as the police searched for the Mopac rapist, nicknamed that because the attacks occurred near the expressway, Dye raped seven more women before finally being caught.

When Austin Police Chief Stan Knee began championing DNA testing at the time of arrest, he had to look no further than Dye, the city's most notorious serial rapist. "He's the perfect example of how we could have saved 11 (rape) victims." Testing Dye upon his first burglary arrest could have led to a DNA match from his first three rapes.